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U.S. COVID-19: Biometrics and Business Re-Opening

Now that wearing gloves has become the new normal because of the COVID-19 pandemic, biometric privacy litigation, which in recent years has centered on employers’ use of finger-scan timekeeping technology, may ultimately shift in focus to the measures that businesses implement as employees return to the workplace and customers begin to frequent their favorite establishments.  Body temperature checks, used to screen employees and visitors for a fever, are one such measure being considered as a first line of defense for public health.

To mount a defense against, or avoid altogether, biometric privacy class action litigation, businesses open to the public and employers must have a comprehensive understanding of the thermometer or thermal imaging technology selected—and the data it captures—before rolling out temperature screenings on a widespread basis.  Among the technologies available are:

  • Non-contact infrared thermometers that use lasers to measure temperature from a distance;
  • Thermal imaging cameras that detect elevated skin temperatures compared against a sample of average temperature values;
  • Monitoring systems that use thermal and color visual imaging to detect fevers in high-volume pedestrian areas; and
  • “Wearables” that can use radiometric thermometry measuring electromagnetic wave emissions.

While temperature screening has been endorsed by the Centers for Disease Control and Prevention, the Equal Employment Opportunity Commission, and various state and local governments, biometric privacy laws have not been suspended or amended.  The Illinois Biometric Information Privacy Act (“BIPA”) regulates the possession, collection, capture, purchase, receipt, and sale of “biometric identifiers” and “biometric information”—defined to include retina or iris

U.S. COVID-19: New FFCRA Q&A – Key Takeaways Regarding the “Need” for Leave, Joint Employers and Domestic Workers

The federal Department of Labor (“DOL”) is closing in on 100 informal “questions and answers” (the “Q&A”) relating to the Families First Coronavirus Response Act (“FFCRA”), having issued Q&A #s 89-93.  The new Q&A address steps employers may take when determining whether employees truly “need” FFCRA leave; issues relating to domestic workers; and a reminder for joint employers that prohibitions on adverse action, interference and retaliation may apply even to employers who are not covered by the FFCRA.

Determining Whether Employees Have A Qualifying Reason For Leave

Three of the five new Q&A provide critical guidance for employers on permissible questions and documentation requirements to ensure that leave is being taken in appropriate circumstances.

In the first Q&A (# 91), the DOL posits a factual scenario in which an employee with children has been teleworking productively for several weeks despite school closings, but then requests FFCRA leave.  The hypothetical employer wonders:  Can I ask my employees why they are now unable to work or if they have pursued alternative child care arrangements?”  The DOL responds affirmatively, indicating that an employee may be asked “to note any changed circumstances in his or her statement as part of explaining why the employee is unable to work.”

Employers should “exercise caution” in this area, however, because, according to the DOL, the more questions asked, the greater “the likelihood that any decision denying leave based on that information is a prohibited act.”  There are many reasons why an employee may not have initially

U.S. COVID-19: Returning High Risk Employees To The Workplace: Best Intentions Could Be Bad News For Employers

Employers preparing to reopen their places of business have many logistical considerations, including compliance with state and local health orders relating to face coverings, temperature and wellness screenings, and other measures designed to help keep employees healthy and safe during the COVID-19 pandemic. Last week, the U.S. Equal Employment Opportunity Commission (“EEOC”) updated its own “Return to Work” guidance by adding Q&A guidance on how employers should handle a “high risk” employee, i.e., an employee with an existing and known disability that may make the employee more susceptible to severe illness from COVID-19.  The guidance is a helpful reminder to employers that even actions taken with the best of intentions may not comply with legal obligations and restrictions.  Below are three important questions for employers to consider in light of the EEOC’s updated guidance.

How does the Interactive Process Apply to COVID-Related Requests for Accommodation?

Under the Americans with Disabilities Act (the “ADA”), employers are obligated to consider requests from a disabled employee for reasonable accommodations to the employee’s work environment that would permit him or her to perform the essential functions of the job. While the EEOC’s earlier guidance addressed the nuts and bolts of the “interactive process” during the pandemic generally (including the timeframe in which employers should respond to requests for accommodation and what qualifies as an “undue hardship” during the pandemic), many employers were left questioning how the outbreak of COVID-19 would impact their

Coronavirus Job Retention Scheme – extension until 31 October 2020

Since its inception, almost one million employers have applied to the Coronavirus Job Retention Scheme (“CJRS”) to help pay the wages of 7.5m jobs (almost a quarter of all employees in the UK).  Although there is no doubt that the CJRS has been a great success in protecting jobs whilst businesses have been in hibernation, the cost to the UK taxpayer has been extraordinary – an estimated £49 billion up to 30 June 2020, according to the Office for Budget Responsibility.

The government will be hopeful that as lockdown is eased and employees who cannot work from home gradually return back to the workplace, reliance on the CJRS will decline.  However, there are some sectors which will not be able to reopen until 4 July 2020 (at the earliest) and there will be some employers who will not be able to put in place a COVID-19 secure workplace.  With that in mind, and with a collective redundancy consultation “cliff-edge” on 15 May 2020, the government has taken steps to extend the CJRS.

Today, the UK Chancellor of the Exchequer announced the following:

  • the CJRS will be extended for a further four months, up to 31 October 2020;
  • no changes will be made to the CJRS until the end of July 2020;
  • with effect from 1 August 2020, part-time furloughing under the CJRS (which is currently prohibited) will be permitted;
  • the existing government grant of 80% of wages (capped at £2,500 per month) will continue to remain in place; and

Coronavirus – measures that UK employers need to take to “help get Brits safely back to work”

Yesterday, the UK government published eight different workplace-specific guidance documents on measures that employers need to take to “help get Brits safely back to work”. The guidance is tailored for different workplace environments, such as offices, factories, retail shops etc.

Whilst the basic position remains that employers should take all reasonable steps to help their staff work from home, where this is not feasible and the employer has not been told to close, staff should be encouraged to come back to work – as long as there is a ‘COVID-19 secure’ environment put in place by the employer.

In order to take steps to ensure that the workplace is COVID-19 secure, employers are required to take the following key steps:

  • consult with the health and safety representative selected by a recognised trade union (or, if there is not one, a representative chosen by staff) about a risk assessment to be carried out in order to establish what specific guidelines need to be to put in place;
  • share the results of the risk assessment with the workforce – the UK government has stated that it expects all employers with over 50 workers to publish this data on their website;
  • display a standard form notice in the workplace to demonstrate that the employer is following the guidance;
  • re-design workplaces to maintain (wherever possible) social distancing by, for example, ensuring a 2 metre distance between staff; staggering working hours and opening up more exit and entry points;
  • if it is not

Coronavirus – first steps to unlocking lockdown for employees in England

Last night, the UK Prime Minister made his long awaited announcement on the roadmap to easing lockdown in England.  As anticipated in the days leading up to the announcement, the changes to the lockdown arrangements (described by the TUC as a “recipe for confusion”) have been tentative.  From an employment perspective, the key points to note are:

  •  the government guidance has now shifted so that those employees who work in the construction and manufacturing sector should be actively encouraged to return to work, if they cannot work from home;
  • given the impact of social distancing on the public transport network, employees returning to the workplace, will need to find alternative ways to travel; and
  •  employers will need to ensure that social distancing and other health and safety measures are in place at the workplace.

Limited public transport capacity is likely to pose a significant conundrum for employers.  Whilst they may be able to put in place innovative social distancing measures, it remains to be seen how staff will be to travel into work.  This is likely to be even more problematic as we move into the winter months when, for example, cycling to work will not be a practical solution.

Employers also need to balance the desire to reopen with ensuring that they provide a safe working environment and that their employees are comfortable returning to work.  Sector specific safety protocols, designed to make the workplace COVID secure, are expected to be published by the government shortly.  Employers

U.S. COVID-19: OSHA & Your Reopening Plans: A Step-By-Step Guide for Employers

As state and local governments begin to ease restrictions on businesses and increasingly look to “reopen” economic activity, employers are evaluating how to safely return employees to the workplace. This preparation must include not only understanding the parameters of state and local orders (which often include basic social distancing measures, such as staying 6 feet apart, or requiring employees to wear face coverings), but also considering obligations under standards set by the federal Occupational Safety and Health Administration (“OSHA”).

Below is a guide for employers to consider as they evaluate safe return-to-work strategies during the ongoing COVID-19 pandemic. Please consult BCLP’s additional guidance for a broader discussion of other considerations when developing a “reopening plan.”

Step 1: Review state and local orders to determine whether a business or workplace is permitted to reopen.

As an initial step, an employer must determine whether, when and to what extent it can open and maintain in-person operations. State and local orders vary in their definitions of “essential businesses” permitted to operate. For example, Georgia’s recent “reopening” orders only grant a small subset of businesses permission to reopen. BCLP is tracking the current status of state and local shelter-in-place orders nationwide, which are changing regularly.

Step 2: Review OSHA’s COVID-19 Guidance to understand and implement broadly applicable recommendations for reducing employees’ risk of exposure to COVID-19.

An employer should next carefully consider what  steps it must take to comply with the federal Occupational Safety and Health Act (the

U.S. COVID-19: Mask and Facial Covering Orders—Four Things Employers Need to Know and Do to Comply with New Obligations

Across the country, state and local governments are considering safe ways to “reopen” their economies and revise some of their strict shelter-in-place orders. One such consideration includes masks and “face coverings,” with many implementing a requirement that members of the public, including employees reporting to work, wear such coverings.  Below are four things that employers should do now to be prepared to comply with mask and face covering requirements as they “reopen” their businesses.

  • Continue to Monitor Public Health Guidance
  • Public health authorities at the federal, state, and local levels are likely to continue revising their recommendations on face coverings as they learn more about COVID-19. For example, last month, the federal Centers for Disease Control and Prevention (“CDC”) issued guidance recommending that individuals wear “cloth face coverings”[1] in public settings where other social distancing measures are difficult to maintain (e.g., grocery stores and pharmacies), especially in areas of significant community-based transmission. The CDC makes clear that the purpose of such coverings is primarily to “help people who may have the virus and do not know it from transmitting it to others.” In other words, a face covering primarily protects others from an asymptomatic wearer.

    Although the CDC’s guidance is only a recommendation – and thus not binding – a variety of local and federal agencies rely on the CDC’s guidance generally to identify “best practices” for employers, including the Equal Employment Opportunity Commission (“EEOC”) and the Occupational Safety and Health Administration (“OSHA”). State and local

    U.S. COVID-19: Illinois Employers Take Note: Key Employment Provisions of the Illinois COVID-19 Executive Order Effective May 1, 2020

    On April 30, 2020, Governor Pritzker issued Executive Order 2020-32, effective May 1, extending social distancing requirements and, among other things, issuing new guidelines for Illinois employers.

    The key employment-related aspects of the Executive Order are as follows:

    • All employers are required to evaluate which employees are able to work from home, and are encouraged to facilitate remote working when possible.
    • All employers that have employees who are physically reporting to a work site must post this guidance from the Illinois Department of Public Health and the Office of the Illinois Attorney General regarding workplace safety during the pandemic.
    • When working, all individuals who are able to medically tolerate a face covering (which includes “a mask or cloth face-covering”) are required to cover their nose and mouth with a face covering when in a public place and unable to maintain a six-foot social distance. This includes public indoor spaces such as stores.
    • All employers operating Essential Businesses and Operations and engaged in Minimum Basic Operations must take proactive measures to ensure compliance with “Social Distancing Requirements.”
      • Social Distancing Requirements include: “maintaining at least six-foot social distancing from other individuals, washing hands with soap and water for at least 20 seconds as frequently as possible or using hand sanitizer, covering coughs or sneezes (into the sleeve or elbow, not hands), regularly cleaning high-touch surfaces, and not shaking hands.”
      • In addition, employers should, where possible:
        • Provide employees with “appropriate face coverings” and require that employees wear face coverings

    To Record or Not To Record, That is the Question: Questions and Answers Regarding U.S. Federal OSHA Recordkeeping and Reporting Requirements During the COVID-19 Crisis

    April 29, 2020

    Categories

    QUESTION: If an employee informs you that they are experiencing flu-like symptoms and complains that they have become ill from a workplace exposure to the COVID-19 virus, are you, as the employer, required by OSHA to record the illness on your OSHA 300 Log?

     

    QUESTION: If an employee reports to you, as their employer, that they have tested positive for the COVID-19 virus, are you required by federal OSHA regulations to record that illness on your OSHA 300 Log?

     

    QUESTION: If an employee in the healthcare, emergency response, or correctional institution industries reports to you, as their employer, that they tested positive for the COVID-19 virus, are you required by federal OSHA regulations to record that illness on your OSHA 300 Log?

     

    Read this informative article written by our BCLP colleagues for answers to these and many other important questions for employers during COVID-19.

     

    We will continue to monitor and provide insight regarding any developments in OSHA guidelines, as well as other federal and state government regulations, throughout the COVID-19 crisis and update you accordingly. We also invite you to review BCLP’s other COVID-19 resources, many of which are aimed directly at answering additional questions and concerns for businesses and employers operating during the COVID-19 crisis. If you have any questions related the above OSHA guidelines or any other concerns for your business’ operations during the COVID-19 crisis, please contact a member of the Employment and Labor team or your BCLP relationship attorney.

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